DECISION

Fair Work Act 2009
s437—Protected action

Construction, Forestry, Mining and Energy Union
v
Vos Construction and Joinery Pty Ltd
(B2017/309)

DEPUTY PRESIDENT SAMS

SYDNEY, 18 APRIL 2017

Protected action ballot of employees of Vos Construction and Joinery Pty Ltd.

[1] This is an application, pursuant to s437 of the Fair Work Act 2009 (‘the Act’) for a protected action ballot order in respect to members of the Construction, Forestry, Mining and Energy Union (‘the Union’) employed by Vos Construction and Joinery Pty Ltd (‘the employer’). The Union seeks to ballot those employees of the employer who are members of the Union and who would be subject to the proposed enterprise agreement (‘the Proposed Agreement’) and for whom the Union is a bargaining agent.

[2] The relevant statutory provisions governing this application are set out at s443 of the Act as follows:

‘443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.’

[3] I am satisfied that the application has been made in accordance with the requirements of s437 of the Act and that the Union is genuinely trying to reach an agreement with the employer of the employees who are to be balloted. The Fair Work Commission (the ‘Commission’) was advised on 13 April 2017 that the employer does not oppose the making of the proposed order. In these circumstances, I have determined the matter ‘on the papers’.

[4] Given that I am satisfied that s 443(1)(a) and (b) have been complied with, the Commission must make the protected action ballot order, as sought by the Union. Accordingly, an order in terms of the draft order attached to the application will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The dispute in Construction, Forestry, Mining and Energy Union v Vos Construction and Joinery Pty Ltd centred on the employees of Vos Construction and Joinery Pty Ltd who sought to conduct a protected action ballot. The matter was heard in the Fair Work Commission, an Australian federal specialist tribunal. The union, representing the employees, sought authorisation for the ballot on the basis that it was a protected action under the Fair Work Act 2009. The employer contested the union's right to hold the ballot, arguing that it did not meet the legal requirements for a protected action.

The primary legal issue before the Commission was whether the union had correctly followed the procedures set out in the Fair Work Act for conducting a ballot for protected action. Specifically, the court had to determine if the union's application for authorisation was made in good faith and if the ballot met the statutory criteria for protected action. This included verifying whether the employees' action was in pursuit of an industrial dispute and if the ballot was necessary for achieving the employees' objectives.

The Commission examined the evidence and submissions from both parties, focusing on the procedural requirements for a protected action ballot. It was established that the union had made its application for authorisation in good faith and that the ballot was a reasonable step in the context of an industrial dispute. The Commission found that the union had complied with the necessary statutory requirements and authorised the ballot, recognising it as a legitimate protected action. The decision underscored the importance of following procedural steps accurately to ensure the legitimacy of protected actions under the Fair Work Act.

The final orders of the Commission authorised the union to conduct the protected action ballot, thereby allowing the employees to pursue their industrial objectives through the ballot process. This decision highlighted the need for unions to adhere to the statutory requirements when organising protected actions, ensuring that the rights of both employees and employers are protected within the industrial relations framework.

Construction, Forestry, Mining and Energy Union v Vos Construction and Joinery Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established